Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Releasing submissions to a public inquiry

This question relates to a review of the South Australian Emergency services legislation. My correspondent writes:

In July 2014 the South Australian Government announced a reform to the emergency services. In August 2014 the South Australian Fire and Emergency Commission took submissions on proposed structures and opinions on the Sector Reform and had contacted writers of submissions to seek approval to make publicly available published pieces, therefore does SAFECOM have a responsibility to ensure every submission is publicly available if they have requested it to be made available to the public?

The South Australian government did commission a review of the emergency services legislation (Hon. Paul Holloway BSc, BEc, BE (Hons), Review of the Fire and Emergency Services Act 2005 Pursuant to Section 149 of the Fire and Emergency Services Act (August 2013). Following that the Minister called for emergency services sector reform (see SAFECOM, Emergency Services Sector Reform. This lead to a further discussion paper – A SAFER Community: Discussion paper (September 2014). That paper concluded wth this invitation:

The Honourable Tony Piccolo MP, Minister for Emergency Services would welcome your comments on the discussion paper, in particular on the proposed structure outlined in figure 3.

Below are the submissions to the discussion paper, A SAFER Community, released in September 2014.

Authors of the submissions have been contacted and their identifying details removed (if they have requested it). Not all authors wished to have their submission provided publicly.

My correspondent’s question implies that some people were contacted and indicated that they wanted their submission to be provided publicly, but those submissions have not been released. Is there any legal obligation to put those submissions on this paper?

Discussion

I can’t think of any particular obligation. The inquiry was not conducted under any particular legislation. Governments are entitled to make enquiries into issues where they need information – they don’t need particular legislative authority to do so if all they are doing is calling for submissions.

I can see nothing in the Freedom of Information Act 1991 (SA) or the Constitution Act 1934 (SA) that would require the release of all submissions and I can imagine that a government would want to withhold submissions that were regarded as defamatory or offensive.

But there is an issue here. If a government only releases some submissions then the community could be misled. If for example the government only released submissions that supported a particular view they may claim, and others may believe, that there were no alternative views. Not only would that be misleading it would be poor governance.

I anticipate that if a report was released that did for example claim that 100% of submissions supported proposition ‘A’ and the government simply hid alternative submissions, that a person could seek judicial review to have the report set aside. Further the political implications would be disastrous.

The area of law we are talking about here is administrative law – not what I would call ‘emergency services’ law – so it’s not an area that I am completely over, so if other lawyers out there have an alternative view I’d be pleased to hear it. But my initial view is that there is no obligation ‘to ensure every submission is publicly available’. I can see that there is a responsibility to do so and certainly if some have been omitted just by accident or oversight – but a legal obligation is harder to find.

2 thoughts on “Releasing submissions to a public inquiry”

I think the wording “Below are the submissions to the discussion paper …” implies that all the submissions (except those that the author requested not be made public) are shown, as it could have easily been worded to say that ‘selected submission’s, or ‘representative submissions’ only are shown.

Given that such wording was not used, does such an implication in any way legally require all but the specifiic exceptions be available?

I can’t see that it gives rise to any legal compulsion. I can see that if the agency or government intended to imply that all submissions had been released but deliberately withheld some and then made a report based only on the publicly released submissions and made some misleading claim -such as “100% of submissions supported ‘x'” when in fact there were contrary submissions, but they were withheld, then then could be some claim for a review of any decision. But that’s not the same as saying there is a legal obligation to release them all.